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The latest from NDRN's legal activity... 

Americans with Disabilities Act (ADA)

US v AMC (9th Circuit), Amicus Brief filed 09-15-2006. 

Issue. Whether the District court exceeded its authority in ordering nationwide remedial relief applicable to the 96 affected AMC multiplexes throughout the country.  

Summary. In an ADA accessibility case brought by the U.S. Dept. of Justice (DOJ) involving movie theaters with stadium-style  seating, the District Court issued a nationwide injunction based on a finding that AMC's theaters violated the ADA by providing wheelchair seating in only the front rows of theaters. AMC appealed arguing that District Court erred in granting nationwide relief in light of contrary Fifth Circuit decision. The amicus brief argues that the Court correctly granted nationwide relief and, if nationwide relief were not ordered, disability rights groups would be forced to "race to courthouse" to file and litigate before an unfavorable ruling in one Circuit precluded nationwide relief.

Decision:  The Ninth Circuit issued its decision on 12-05-2008, finding that the District Court abused its discretion in issuing an overly broad injunction. It accordingly reversed and remanded for further proceedings.

Bates v UPS (9th Cir.),  Amicus Brief filed 04-06-2005.  

Issue. Whether UPS's use of the U.S. Dept. of Transportation (DOT) hearing test standard, as a qualification standard for drivers of light delivery trucks (i.e., trucks not covered by the DOT rule) violates the Title I of the ADA.  

Decision. UPS had used a DOT hearing test intended for vehicles weighing more than 10,000 lbs to determine who would be eligible for positions driving vehicles that were under 10,000 lbs such as brown package car vans.  Plaintiffs successfully argued at trial that using the test for vehicles under 10,000 lbs, impermissibly screened out deaf applicants with safe driving records, seniority, and who were otherwise eligible to drive. The District Court had ordered UPS to individually assess deaf applicants for driver positions including what reasonable accommodations, if any, were needed to enable deaf applicants to drive safely and communicate effectively. On 10-10-2006, the Ninth Circuit unanimously affirmed the lower court ruling against UPS, Bates v UPS, 465 F.3d 1069 (9th Cir 2006), and UPS sought re-hearing en banc. On 12-28-2007, the Ninth Circuit issued a new decision applying different legal standards because the case involved a facially discriminatory qualification standard, and vacating and remanding for further proceedings.

Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act

Loeffler v. Staten Island University Hospital (2nd Cir.), Amicus Brief filed 3-17-2008.  

Issue. Whether the District Court erred in finding that: the Hospital's failure to provide an ALS interpreter services did not constituted deliberate indifference; the Hospital had an adequate policy place; and the Hospital made good faith efforts to  provide an interpreter for plaintiff and his family members.

Summary. This suit was filed on behalf of a deaf patient and his family who were not provided ASL interpreters for a scheduled in-patient surgery at the Hospital. It sought damages for discrimination resulting from the failure to provide ASL interpreters under Section 504 of the Rehabilitation Act. The District Court found that, because the Hospital had a policy for obtaining interpreters, its failure to actually provide an ASL interpreter was not the result of deliberate indifference. NDRN joined an amicus brief filed on behalf of eleven national and local organizations concerned with health care access issues, language access for individuals with Limited English Proficiency, and discrimination against people with disabilities. The amicus brief supports the argument that effective interpretation is critical in medical settings, and that the lower court failed to recognize precedent that deliberate indifference can be found when the deprivation of rights results from the implementation of a flawed policy.

Sheely v. MRI Radiology Network (11th Cir.), Amicus Brief filed 9-25-2006.

Issue. Did the District Court erroneously dismiss this lawsuit on the grounds that plaintiff cannot recover damages for emotional or mental distress for violations of Section 504 of the Rehabilitation Act?

Summary. A woman with a visual impairment and who uses service dog was denied entry the past waiting room to accompany her 16 year old to an imaging room because of her service dog. After suit was filed, the facility implemented a service animal policy. It then claimed that the claim for injunctive relief was moot, and damages for emotional distress are not available under Section 504. The amicus brief argued that damages for emotional; and mental distress remain available under the Rehabilitation Act, and only punitive damages claims are foreclosed by the U.S. Supreme Court decision in Barnes v. Gorman.

Decision. The 11th Circuit Court of Appeals issued its decision on 10-24-07. It concluded that plaintiff's claims are not moot because the facility had not met its burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. It also held that non-economic damages are available under the Rehabilitation Act. Accordingly, it reversed and remand for further proceedings.

Attorney fees and federal fee-shifting statutes

Perdue v. Kenny A (U.S. Supreme Court, Amicus Brief filed 8-28-2009.

Question: Can an attorneys' fee award under a federal fee-shifting statute ever be enhanced based on quality of performance and results obtained?

Summary of argument. Both 42 U.S.C. § 1988 and U.S. Supreme Court precedent empower judges to adjust fee awards in civil rights cases when the quality of the lawyers' performance is superb and the results they obtain are exceptional. Section 1988 vests judges with the discretion to award a reasonable attorneys' fee to a prevailing plaintiff.  The courts have developed the lodestar calculation of hours worked multiplied by a reasonable hourly rate as the starting point for determining reasonable fees. Judges have the discretion to  adjust  the lodestar in order to arrive at a "reasonable" fee.  As Supreme Court precedent has recognized, an upward adjustment may be appropriate to reflect exceptional performance and results. Judges are well-situated to determine whether the attorneys' work and the outcome they achieved for their clients are reasonably reflected in the lodestar estimate, and such adjustments are consistent with the legislative intent of Section 1988, which sought to promote vigorous enforcement of civil rights laws.

Criminal Justice

Commw. v. Agana (Mass. Supreme Judicial Court), Amicus Brief filed 1-06-2010.

Issue. Whether the Americans with Disabilities Act requires judges to accommodate litigants and witnesses with disabilities to permit access to the judicial process.

Summary. A woman (RM) residing in a nursing home due to physical limitations from a stroke was sexually molested by Agana, a nursing home aide. RM has expressive aphasia which leaves her fully competent but with difficulty expressing herself. After Agana's arrest, his attorney filed a motion for a ruling that RM is incompetent to testify at trial. A court-appointed psychologist found her fully competent but recommended accommodations in questioning her. The judge held a hearing -- without any accommodations -- and found her incompetent. She obtained an attorney who filed an extraordinary appellate writ (the Massachusetts equivalent of the All Writs Act) arguing that RM's ADA rights have been violated and she has no remedy in the current system. The writ asks the Court to reverse and remand the case for further proceedings in which reasonable accommodations are made for RM disabilities.

State v. Wood (Wisconsin Supreme Court), Amicus Brief filed 8-13-2009.

Issue. The constitutionality of a Wisconsin statute and implementing Administrative Directive that permit the involuntary medication of persons found Not Guilty By Reason of Insanity (NGRI) who are incompetent to refuse treatment  -- without a finding of actual dangerousness by clear and convincing evidence and other safeguards.

Summary. This case involves a man diagnosed with schizophrenia in 1975 who was under a forensic commitment after a NGRI verdict. He stopped taking Risperidon and when he subsequently became incompetent, the Hospital petitioned for an order allowing involuntary treatment, which was granted. The amicus brief focuses on: the right of persons with mental disabilities to refuse psychoactive medication; the severe physiological and psychological side effects of the medication, and how forcible medication harms prospects for successful treatment --  making stronger safeguards imperative to prevent impermissible administrative of psychoactive drugs.

Shook v. The Board of County Commissioners of the County of El Paso (10th Cir.), Amicus Brief filed 02-20-2007.

Issue: Denial of class certification based on: (a) the inherent complexities in determining which persons present a need for treatment of mental disorders while confined; and (b) deference to corrections officials requires a separate evaluation of all of the circumstances surrounding each incident.

Summary . Prisoners in county jail brought suit, alleging deliberate indifference to their serious mental health needs, and sought certification of a class consisting of "all persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail."

Decision .  The Tenth Circuit issued its decision on 8-29-2008, affirming the District Court, 543 F.3d 597 (10 th Cir. 2008) (rhg denied 9-25-08). It held that class certification could be denied due to unmanageability, namely the difficulty of crafting specific injunctive relief applicable to class as a whole.

Clark v. Arizona (U.S. Supreme Court), Amicus Brief filed 01-30-2006.

Issue. (1) Whether the Due Process Clause of the Fourteenth Amendment requires states to provide a complete criminal insanity defense to persons other than those who "did not know the criminal act was wrong"? (2) Does the Due Process Clause of the Fourteenth Amendment require states to permit evidence of a mental disorder short of insanity under state law to negate mens rea?

Summary. Arizona amended its  insanity defense In 1993 to only permit a claim that a mental defect kept the defendant from knowing right from wrong. This case involves 17 year old who has paranoid schizophrenia. He shot and killed a police officer who had stopped him for loudly playing the car radio. Clark was charged with first-degree murder. At trial he contended that he was mentally ill at the time of the offense, and did not have the specific intent to shoot an officer or knowledge that he was doing so. He was convicted and sentenced to life in prison.

Decision. The Supreme Court issued its decision on 6-29-2006. Affirming the conviction, it ruled that due process does not prohibit Arizona's use of an insanity test stated solely in terms of the capacity to tell whether an act charged as a crime was right or wrong.


NDRN amicus brief in Forest Grove v. TA, Supreme Court Case No. 08-305 (April 04, 2009)
(Press release)

Board of Education of NYC v Tom F. (U.S. Supreme Court)

D.S. v. Neptune Township, 3rd Circuit.  (Amicus Brief filed Feb 2007).

The issue before the court is whether the parents of a child who has not been classified as "a child with a disability" under IDEA can be reimbursed for attorneys' fees for a successful claim under IDEA.

The parents were successful in securing evaluations from the school system and independent assessments at school district expense through the hearing process.  However, because a state court resolved the issue of school placement for the child through a different proceeding, the determination of the child's eligibility under IDEA was not fully litigated.  The District Court denied parents' application for attorneys fees because neither the school district nor the Administrative Law Judge determined that the child was a child with a disability as defined under IDEA. 2-14-2008 Non-Precedent setting Decision

Winkelman v. Parma City School District (U.S. Supreme Court, Amicus Brief filed Dec. 2006; Case argued 2-27-07; decision issued 5-22-07)

Held:IDEA grants parents independent, enforceable rights, which are not limited to procedural and reimbursement-related matters but encompass the entitlement to a free appropriate public education for their child.

The parents of Jacob Winkelman sought to represent him in a federal court suit under the Individuals with Disabilities Education Act (IDEA) challenging the school district's education plan for him. The Sixth Circuit ruled that non-attorney parents may represent their children in IDEA administrative proceedings but may not appear in federal court to assert their child's substantive rights to a free and appropriate public education (FAPE) or their own procedural rights under IDEA.

On October 27, 2006, the Supreme Court granted certiorari to hear the case and resolve the split in the circuits on this issue. Four courts of appeals have held that parents can represent themselves to pursue their own procedural rights under IDEA, but may not represent their child in asserting the child's substantive right to FAPE.  The First Circuit has held that parents may appear pro se (i.e., represent themselves) in federal court because the procedural and substantive rights are "inextricably intertwined" and, therefore, parents may proceed pro se to assert those rights.

Board of Ed v. S.G., a Minor by her parent and next Friend, N.G.(4th Cir., Amicus Brief filed on Sept. 2006)

S.G. is a child with schizophrenia and depression who was unable to stay in school with large classrooms and crowded hallways.  S.G. also had suicidal thoughts and was hospitalized for causing self-inflicted injuries.  As an accommodation, the school based her grades only on the work she completed, not the work required to meet the curriculum of the class.  With this system, S.G. was passing her classes.  After leaving the hospital S.G. went to a non-public school with small classrooms and integrated therapy.  She felt comfortable in this environment and did much better in school.  However, the school system does not believe S.G. qualifies for special education services basing this argument in part on her passing grades.  The school is refusing to pay for the private school.  The hearing officer and the U.S. District Court ruled for the parents.  The school system appealed to the 4th Circuit.  Currently we are awaiting an oral argument date.  The Council for Parent Attorney and Advocates were also on the amicus brief.

Board of Ed v. Michael R. (7th Cir., Amicus Brief filed on Feb. 2006)

Whether an 18 year-old student with Rett Syndrome should be given FAPE in a self-contained classroom, and were her parents given a meaningful opportunity to participate in the development of her IEP.

Mr. I., et al v. Maine School Administrative District (1st Circuit, Amicus Brief filed on August 2006)

Question. Whether the school's limited definition of "adverse effect" on education was too narrow as applied to a child who has Asperger's and a depressive disorder but does well academically [the school refused to provide services but both the hearing officer and U.S. District Court found the child eligible for special education services]

Arlington Central School District v Murphy (U.S. Supreme Court , Amicus Brief filed on March 2006)

Question. Whether IDEA authorizes payment of expert fees to parents who win special education cases in court [Case brought by parents to force a N.Y. public school district to pay for their son's special education at a private school.) 


See, Bates v UPS under ADA


Garcia v. Brockway & Thompson v. Gohres (9th Cir. Amicus Brief filed January 26, 2008) (Argument set for March 2008)

Question: What is the proper application of the Fair Housing Act's statue of limitations in design and construction cases?

In 1988, Congress amended the Fair Housing Act to require that new multifamily housing be designed and constructed to be more accessible to individuals with disabilities. However, voluntary compliance with the accessibility requirements has not been good, and thus private enforcement actions have been the primary method of enforcement. In its September 20, 2007 decision, the 9th Circuit Court of Appeals held in the consolidated decisions in Garcia v. Brockway and Thompson v. Gohres that private lawsuits to challenge violations of the Fair Housing Act's accessibility requirements had to be filed within two years after completion of construction. On January 7, 2008, the Court vacated its September 20, 2007 decision and agreed to have the entire 9th Circuit reconsider the case. The Amicus Brief filed by 7 fair housing and disability rights groups (including NDRN and the Nevada and California P&As) and 3 law professors argues that when the language of a statute is susceptible to more than one interpretation, courts should adopt the interpretation that is most reasonable in light of the text, structure and purposes of the statute.


Korneenkov v Mukasey (5th Cir. Amicus Brief filed 2-20-2008).

NDRN, the Mississippi and Louisiana P&As joined in an amicus brief written by the Texas P&A and two law professors in an immigration asylum appeal on behalf of two individuals with disabilities including intellectual disabilities from Russia. Under U.S. immigration asylum law, individual must show they are in a protected class and that they have a well-founded fear of persecution. The amicus wrote in support that the individuals were both members of a "particular social group," Russians with intellectual disabilities. The amicus provided the court with information about the history of discrimination against people with disabilities, particularly intellectual disabilities in Russia.

Medicaid - Durable Medical Equipment

Lankford v. Sherman (8th Cir.,Amicus Brief filed on Dec. 2005)

Question. Whether under Federal Medicaid law and regulations, durable medical equipment (DME) is a mandatory service that must be available to Plaintiffs.[Decision]

Amicus Requests

Requests for NDRN to draft or join an amicus brief can be made by downloadng the NDRN Amicus Request form and submitting it to Kenneth Shiotani, NDRN's amicus coordinator

Factors influencing whether NDRN can grant a request include the importance of the issues to the P&A network, the procedural posture of the case, and the amount of time available for preparation and review of the amicus brief before it needs to be filed.